CNX » Topics » 1.2 Definitions

This excerpt taken from the CNX 8-K filed Sep 11, 2009.

1.2 Definitions

“Actuarial Equivalent” means the actuarial present value of a specified benefit as determined on an applicable date using the mortality, interest rate and other assumptions as defined in the Qualified Plan.

“Annual Compensation” means annual base salary plus amounts received under the Company’s Short Term Incentive Compensation Plan, the CNX Gas Corporation Short-Term Incentive Compensation Plan or any executive Short Term Incentive Plan (as and if applicable). All other forms of remuneration are excluded, including but not limited to all long-term incentive compensation, bonuses, fringe benefits and stock-based awards.

“Beneficiary” means the person or persons designated by a Participant as his beneficiary hereunder in accordance with the provisions of Article V.

“Board” means the Board of Directors of the Company.

“Cause” means (i) a charge, indictment or conviction of, or a plea of guilty or nolo contendere to, a misdemeanor involving moral turpitude or a felony, whether or not in connection with the performance by a Participant of his or her duties or obligations to the Company or any Subsidiary; (ii) theft relating to the business of the Company or any Subsidiary or dishonesty with respect to a material aspect of the business of the Company or any Subsidiary; (iii) gross negligence or willful misconduct in the performance of the Participant’s duties or obligations to the Company or any Subsidiary, or engaging in illegal activity in connection therewith, including, without limitation, a Participant’s engagement in any act or course of conduct that would result in the termination or revocation of, or jeopardize the renewal of, any licenses, permits, consents, authorization, approvals or material agreements necessary for the Company or any Subsidiary to conduct its business or that would have an adverse effect on the Company or any Subsidiary; (iv) violation of any provision of any nonsolicitation, noncompetition or nondisclosure contained in any agreement entered into by and between a Participant and the Company and/or any Subsidiary; or (v) “cause” as defined in the Participant’s employment and/or change of control agreement, if any, with the Company or any Subsidiary. The determination as to whether or not Cause exists will be made by the Retirement Board and the CEO of the Company (“CEO”) in accordance with its discretionary powers under Section 1.3; provided, however, that the Board shall make the determination as to whether or not Cause exists with respect to the CEO. The Retirement Board and the CEO shall periodically report to the Board as to its determinations, if any, with respect to determinations of Cause.

 

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“Change in Control” means the occurrence of any of the following events:

(i) the acquisition after the date hereof by any individual, entity or group (within the meaning of section 13(d)(3) or
14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 35% of the combined voting power of the then outstanding voting stock of the Company; provided, however, that for purposes of this subsection (i), the following acquisitions will not constitute a Change in Control: (A) any issuance of voting stock of the Company directly from the Company that is approved by the Incumbent Board (as defined in subsection (ii), below), (B) any acquisition by the Company of voting stock of the Company, (C) any acquisition of voting stock of the Company by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiary, (D) any acquisition of voting stock of the Company by an underwriter holding securities of the Company in connection with a public offering thereof, or (E) any acquisition of voting stock of the Company by any Person pursuant to a Business Combination that complies with clauses (A), (B) and (C) of subsection (iii), below; or

(ii) individuals who constitute the Board as of the Effective Date (the “Incumbent Board,” as modified by this subsection (ii)), cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a Director subsequent to such date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least two-thirds of the Directors then comprising the Incumbent Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination) will be deemed to have then been a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

(iii) consummation of a reorganization, merger or consolidation of the Company or a direct or indirect wholly owned subsidiary thereof, a sale or other disposition (whether by sale, taxable or nontaxable exchange, formation of a joint venture or otherwise) of all or substantially all of the assets of the Company, or other transaction involving the Company (each, a “Business Combination”), unless, in each case, immediately following such Business Combination, (A) all or substantially all of the individuals and entities who were the beneficial owners of voting stock of the Company immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the combined voting power of the then outstanding shares of voting stock of the entity resulting from such Business Combination or any direct or indirect parent corporation thereof (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries), (B) no Person other than the Company beneficially owns 25% or more of the combined voting power of the then outstanding shares of voting stock of the entity resulting from such Business Combination or any direct or indirect parent corporation thereof (disregarding all “acquisitions” described in clauses (A) - (C) of subsection (i)), and (C) at least a majority of the members of the Board of Directors of the entity resulting from such Business Combination or any direct or indirect parent corporation thereof were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or (iv) approval by the stockholders of the Company of a complete liquidation or dissolution of the Company, except pursuant to a Business Combination that complies with clauses (A), (B) and (C) of subsection (iii).

 

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Notwithstanding the foregoing or any provision of this Agreement to the contrary, it is intended that the forgoing definition of Change in Control qualify as a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation, within the meaning of Treas. Reg. § 1.409A-3(i)(5), and this Agreement shall be interpreted and construed to effectuate such intent.

“Code” means the Internal Revenue Code of 1986, as amended, and any successor code or law.

“Committee” means the Compensation Committee of the Board, or such other committee designated by the Board to discharge the duties of the Committee hereunder.

“Company” means CONSOL Energy Inc. or any successor thereto.

“Disability” means a Participant: (1) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to last for a continuous period of not less than 12 months; or (2) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than 3 months under an accident and health plan of the Company or its Subsidiaries.

“Final Average Compensation” means, subject to Section 1.4(c), the average of a Participant’s five highest consecutive Annual Compensation amounts while employed by the Company and its Subsidiaries.

“Normal Retirement Date” means the date such Participant attains age sixty five (65).

“Participant” means any employee who has satisfied the eligibility requirements set forth in Section 1.4 of the Plan.

Person means any individual, corporation, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Plan Year” means the twelve-month period beginning each January 1 and ending on the following December 31.

“Qualified Plan” means CONSOL Energy Inc. Employee Retirement Plan, as amended, the CNX Gas Corporation Employee Retirement Plan and/or such other plan(s) as designated by the Retirement Board.

“Section 409A” shall mean Section 409A of the Code, the regulations and other binding guidance promulgated thereunder.

“Separation From Service” shall mean a Participant’s death, retirement or other termination of employment with the Company and all of its controlled group members within the meaning of Section 409A of the Code. For purposes hereof, the determination of controlled group members shall be made pursuant to the provisions of Section 414(b) and 414(c) of the Code; provided that the language “at least 50 percent” shall be used instead of “at least 80 percent” in each place it appears in Section 1563(a)(1),(2) and (3) of the Code and Treas. Reg. § 1.414(c)-2; provided, further, where legitimate business reasons exist (within the meaning of Treas. Reg. § 1.409A-1(h)(3)), the language “at least 20 percent” shall be used instead of “at least 80 percent” in each place it appears. Whether a Participant has a Separation from Service will be determined based on all of the facts and circumstances and in accordance with the guidance issued under Section 409A.

 

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“Service Fraction” means the fraction determined hereunder with a numerator that is the Participant’s number of full Years of Service and with a denominator of 20. The Service Fraction can never exceed one (1).

“Specified Employee” means a key employee (as defined in Section 416(i) of the Code without regard to paragraph (5) thereof) of the Company and its Subsidiaries, as defined in the regulations issued under Code Section 409A, as determined in accordance with the procedures established by the Company.

“Subsidiary” means, unless specifically excluded by the Committee, any entity in which the Company owns or otherwise controls, directly or indirectly, stock or other ownership interests having the voting power to elect a majority of the board of directors, or other governing group having functions similar to a board of directors, as determined by the Committee. For purposes of this Plan, CNX Gas Corporation or any of its subsidiaries shall be considered to be a “Subsidiary” as follows: (i) if a Participant is employed by the Company or CNX Gas Corporation on or after September 8, 2009, CNX Gas Corporation shall be a “Subsidiary” with respect to such Participant for all purposes under this Plan, such that, for example, the Participant’s Annual Compensation and Years of Service will include service with CNX Gas Corporation both before and after said September 8, 2009 date; and (ii) if a Participant was not employed by the Company or CNX Gas Corporation on or after September 8, 2009, CNX Gas Corporation shall not be a “Subsidiary” with respect to such Participant for all purposes under this Plan, such that, for example, the Participant’s Annual Compensation and Years of Service will exclude all service with CNX Gas Corporation. An entity shall be considered to be a “Subsidiary” only for the period of time in which the ownership test and the Committee approval set forth above have been met.

“Year of Service” means, subject to Section 1.4(c), each full twelve-month period of active, full-time employment with the Company following the Participant’s most recent hire date, as determined pursuant to the Company’s regular personnel records and policies. The Committee may, but is not required to, recognize employment with prior employers for purposes of this Plan. Any such recognition shall be in writing and shall state the purposes for which service will be recognized under this Plan. In addition, the Plan will (i) recognize service for periods of prior employment with the Company; (ii) recognize periods of service with CNX Gas Corporation in accordance with the rules set forth in the definition of Subsidiary for CNX Gas Corporation; and (iii) recognize periods of employment with any other Subsidiary, but only for periods of time while that entity meets the definition of Subsidiary (e.g. is owned by the Company).

This excerpt taken from the CNX 10-Q filed Apr 30, 2008.

DEFINITIONS

The following terms shall have the meanings set forth in this article, unless a different meaning is plainly required by the context;

“Account” means the book entry account established and maintained for each Participant under Section 3.1.

“Administrator” means a committee of two or more persons selected to serve by the Board. If no such committee exists, then the Administrator means the Board.

“Affiliate” means any parent corporation (within the meaning of Code § 424(e)) or subsidiary corporation (within the meaning of Code § 424(f)), or any entity that is controlled directly or indirectly by the Company, or that the Company has a significant equity interest.

“Beneficiary” means an individual, trust or other entity entitled to receive payment on account of a Participant’s death.

“Board” means the board of directors of CONSOL Energy Inc.

“Code” means the Internal Revenue Code of 1986, as amended.

“Company” means CONSOL Energy Inc.

“Deferral” means the amount or percentage to be withheld from an Eligible Director’s Fee, pursuant to a Deferral Election.

“Deferral Election” means an Eligible Director’s election to defer all or a portion of his or her Fee under the Plan on the form and in the manner prescribed by the Administrator and as may be required under the Plan. No Deferral Election shall be effective with respect to any Fee payable while the Participant is not an Eligible Director.

“Earnings” means the amount credited to a Participant’s Account each quarter under Section 3.2.

“Eligible Director” means a member of the Board, and who is selected by the Administrator, in its sole discretion, as eligible to participant in the Plan and notified of such in writing.

“Fee” means any fee, such as the annual retainer, meeting fees or other amounts earned by the Eligible Director during the Plan Year for services performed as a member of the Board, and that is paid in cash to the Eligible Director, or would be paid but for a Deferral Election.

“Participant” means an individual for whom either (i) a Deferral Election is in effect or (ii) an Account exists (including a Beneficiary when appropriate in the context).

 

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“Plan” means the CONSOL Energy Inc. Directors Deferred Compensation Plan as set forth herein, as it may be amended from time to time.

“Plan Year” means the one-year period between the annual stockholders’ meeting and the next following annual stockholders’ meeting.

Section 409A shall mean Section 409A of the Code, the regulations and other binding guidance promulgated thereunder.

Separation from Service shall mean the Director’s death, retirement or other termination of service with the Company and all of its controlled group members within the meaning of Section 409A. For purposes hereof, the determination of controlled group members shall be made pursuant to the provisions of Section 414(b) and 414(c) of the Code; provided that the language “at least 50 percent” shall be used instead of “at least 80 percent” in each place it appears in Section 1563(a)(1),(2) and (3) of the Code and Treas. Reg. § 1.414(c)-2; provided, further, where legitimate business reasons exist (within the meaning of Treas. Reg. § 1.409A-1(h)(3)), the language “at least 20 percent” shall be used instead of “at least 80 percent” in each place it appears. Whether the Director has a Separation from Service will be determined based on all of the facts and circumstances and in accordance with the guidance issued under Section 409A.

“Trust” means the legal entity created by the Trust Agreement.

“Trust Agreement” means the trust instrument entered into between the Company and a trustee, as it may be amended from time to time.

“Unforeseeable Emergency” means a severe financial hardship resulting from one of the following: an illness or accident of the Director, his or her spouse, beneficiary or dependent (as defined in § 152(a) of the Code, without regard to Section 152(b)(1), (b)(2) and (d)(1)(B)); the need to pay for the funeral expenses of a spouse, beneficiary or dependent (as defined above); loss of the Director’s property due to casualty; or other similar extraordinary and unforeseeable circumstances arising from events beyond the Director’s control.

IN WITNESS WHEREOF, CONSOL Energy, Inc., has caused this Plan to be executed by a duly authorized officer effective as of March 20, 2008.

 

CONSOL ENERGY INC.
By:  

/s/ William J. Lyons

  William J. Lyons
  Executive Vice President and
  Chief Financial Officer

 

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This excerpt taken from the CNX 10-K filed Feb 20, 2007.

1.2 Definitions

“Actuarial Equivalent” means the actuarial present value of a specified benefit as determined on an applicable date using the mortality, interest rate and other assumptions as defined in the Qualified Plan.

“Annual Compensation” means annual base salary plus amounts received under the Company’s Short Term Incentive Compensation Plan. All other forms of remuneration are excluded, including but not limited to all long-term incentive compensation, bonuses, fringe benefits and stock-based awards.

“Beneficiary” means the person or persons designated by a Participant as his beneficiary hereunder in accordance with the provisions of Article V.

“Board” means the Board of Directors of the Company.

“Cause” means (i) a charge, indictment or conviction of, or a plea of guilty or nolo contendere to, a misdemeanor involving moral turpitude or a felony, whether or not in connection with the performance by a Participant of his or her duties or obligations to the Company or any Subsidiary; (ii) theft relating to the business of the Company or any Subsidiary or dishonesty with respect to a material aspect of the business of the Company or any Subsidiary; (iii) gross negligence or willful misconduct in the performance of the Participant’s duties or obligations to the Company or any Subsidiary, or engaging in illegal activity in connection therewith, including, without limitation, a Participant’s engagement in any act or course of conduct that would result in the termination or revocation of, or jeopardize the renewal of, any licenses, permits, consents, authorization, approvals or material agreements necessary for the Company or any Subsidiary to conduct its business or that would have an adverse effect on the Company or any Subsidiary; (iv) violation of any provision of any nonsolicitation, noncompetition or nondisclosure contained in any agreement entered into by and between a Participant and the Company and/or any Subsidiary; or (v) “cause” as defined in the Participant’s employment agreement, if any, with the Company or any Subsidiary. The determination as to whether or not Cause exists for termination of Participant’s employment will be made by the Committee.


“Change in Control” means the occurrence of any of the following events:

(i) the acquisition after the date hereof by any individual, entity or group (within the meaning of section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 35% of the combined voting power of the then outstanding voting stock of the Company; provided, however, that for purposes of this subsection (i), the following acquisitions will not constitute a Change in Control: (A) any issuance of voting stock of the Company directly from the Company that is approved by the Incumbent Board (as defined in subsection (ii), below), (B) any acquisition by the Company of voting stock of the Company, (C) any acquisition of voting stock of the Company by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiary, (D) any acquisition of voting stock of the Company by an underwriter holding securities of the Company in connection with a public offering thereof, or (E) any acquisition of voting stock of the Company by any Person pursuant to a Business Combination that complies with clauses (A), (B) and (C) of subsection (iii), below; or

(ii) individuals who constitute the Board as of the Effective Date (the “Incumbent Board,” as modified by this subsection (ii)), cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a Director subsequent to such date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least two-thirds of the Directors then comprising the Incumbent Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination) will be deemed to have then been a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

consummation of a reorganization, merger or consolidation of the Company or a direct or indirect wholly owned subsidiary thereof, a sale or other disposition (whether by sale, taxable or nontaxable exchange, formation of a joint venture or otherwise) of all or substantially all of the assets of the Company, or other transaction involving the Company (each, a “Business Combination”), unless, in each case, immediately following such Business Combination, (A) all or substantially all of the individuals and entities who were the beneficial owners of voting stock of the Company immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the combined voting power of the then outstanding shares of voting stock of the entity resulting from such Business Combination or any direct or indirect parent corporation thereof (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries), (B) no Person other than the Company beneficially owns 25% or more of the combined voting power of the then outstanding shares of voting stock of the entity resulting from such Business Combination or any direct or indirect parent corporation thereof (disregarding all “acquisitions” described in clauses (A) - (C) of subsection (i)), and (C) at least a majority of the members of the Board of Directors of


the entity resulting from such Business Combination or any direct or indirect parent corporation thereof were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or (iv) approval by the stockholders of the Company of a complete liquidation or dissolution of the Company, except pursuant to a Business Combination that complies with clauses (A), (B) and (C) of subsection (iii).

“Code” means the Internal Revenue Code of 1986, as amended, and any successor code or law.

“Committee” means the Compensation Committee of the Board, or such other committee designated by the Board to discharge the duties of the Committee hereunder.

“Company” means CONSOL Energy Inc. or any successor thereto.

“Disability” means, unless otherwise determined by the Committee, a Participant: (1) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to last for a continuous period of not less than 12 months; or (2) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than 3 months under an accident and health plan of the Company or its Subsidiaries.

“Final Average Compensation” means the average of a Participant’s five highest consecutive Annual Compensation amounts while employed by the Company and its Subsidiaries.

“Normal Retirement Date” means the date such Participant attains age sixty five (65).

“Participant” means any employee who has satisfied the eligibility requirements set forth in Section 1.4 of the Plan.

Person” means any individual, corporation, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Plan Year” means the twelve-month period beginning each January 1 and ending on the following December 31.

“Qualified Plan” means CONSOL Energy Inc. Employee Retirement Plan, as amended, and/or such other plan(s) as designated by the Committee.

“Separation From Service” means a termination of employment with the Company and its Subsidiaries due to an Employee’s death, retirement or otherwise, as defined in the regulations issued under Code Section 409A.

“Service Fraction” means the fraction determined hereunder with a numerator that is the Participant’s number of full Years of Service and with a denominator of 20. The Service Fraction can never exceed one (1).


“Specified Employee” means a key employee (as defined in Section 416(i) of the Code without regard to paragraph (5) thereof) of the Company and its Subsidiaries, as defined in the regulations issued under Code Section 409A.

“Subsidiary” means, unless otherwise determined by the Committee, any entity in which the Company owns or otherwise controls, directly or indirectly, stock or other ownership interests having the voting power to elect a majority of the board of directors, or other governing group having functions similar to a board of directors, as determined by the Committee; provided, however, that the term “Subsidiary” shall not include CNX Gas Corporation or any of its subsidiaries.

“Year of Service” means each full twelve-month period of active, full-time employment with the Company following the Participant’s most recent hire date, as determined pursuant to the Company’s regular personnel records and policies. The Committee may, but is not required to, recognize employment with prior employers for purposes of this Plan. Any such recognition shall be in writing and shall state the purposes for which service will be recognized under this Plan. In addition, the Plan will recognize service for periods of prior employment with the Company or any Subsidiary.

These excerpts taken from the CNX 8-K filed Aug 12, 2005.

1. Definitions

 

As used herein, the following terms shall have the following meanings:

 

Adjustment shall have the meaning set forth in Section 10.

 

Code shall mean the Internal Revenue Code of 1986, as amended.

 

Deconsolidation shall have the meaning set forth in Section 13.

 

Federal Group Consolidated Return shall have the meaning set forth in Section 2.

 

Federal Income Taxes shall mean the taxes imposed by Sections 11, 55 and 59A of the Code (or any successor provisions), as well as any penalties, additions to tax and interest imposed with respect thereto.

 

Gasco means CNX Gas Corporation, a Delaware corporation.

 

Gasco Items shall have the meaning set forth in Section 10.

 

Gasco Stand-Alone Attribute shall have the meaning set forth in Section 6.

 

Gasco Subgroup shall mean the group of corporations consisting of Gasco and all corporations which would constitute an affiliated group (within the meaning of Section 1504(a) of the Code) of which Gasco was the common parent corporation were it not for the fact that Gasco is a member of the Group.


Tax Sharing Agreement

 

Group Consolidated Return shall have the meaning set forth in Section 2.

 

Group shall mean the affiliated group (within the meaning of Section 1504(a) of the Code) of which Parent is the common parent corporation.

 

Parent shall mean CONSOL Energy Inc. a Delaware corporation.

 

Post-Deconsolidation Year shall mean any taxable year which ends after a Deconsolidation.

 

Pre-Agreement Year shall have the meaning set forth in Section 9.

 

Records shall have the meaning set forth in Section 11.

 

Spin-Off shall have the meaning set forth in Section 13.

 

Stand-Alone Tax Liability shall have the meaning set forth in Section 5.

 

State Group Consolidated or Combined Return shall have the meaning set forth in Section 2.

 

State Income Tax shall mean any tax imposed by the various states or commonwealths wherein Gasco or any member of a Gasco Subgroup has a taxable presence or may be required to share in the combined tax return filed by Parent.

 

1.1 Definitions

 

In addition to the words and terms defined elsewhere in this Agreement, the following words and terms shall have the following meanings, respectively, unless the context hereof clearly requires otherwise:

 

Affiliate” as to any Person shall mean any other Person (i) which directly or indirectly controls, is controlled by, or is under common control with such Person, (ii) which beneficially owns or holds 10% or more of any class of the voting or other equity interests of such Person, or (iii) 10% or more of any class of voting interests or other equity interests of which is beneficially owned or held, directly or indirectly, by such Person. Control, as used in this definition, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, including the power to elect a majority of the directors or trustees of a corporation or trust, as the case may be.

 

Agreement” shall have the meaning ascribed to such term in the preamble.

 

Annual Drilling Plan” shall mean a plan, prepared by the Gas Parties prior to September 1 of each year in consultation with the Coal Parties showing (a) the general area of drilling and the number of Wells proposed to be drilled in the next calendar year by each of the Gas Parties and the Coal Parties and (b) the approximate location of all Systems proposed to be installed by the Gas Parties; provided, however, that an Annual Drilling Plan need not address any Well or System to be located in any area that is not reasonably likely to ever become a Coal Area.

 

Business Day” shall mean any day on which each Coal Party and each Gas Party is open for business in the ordinary course of affairs.

 

Capital Costs of Development” shall mean the Capital Costs of any Well covered by an Annual Drilling Plan or requested by any Coal Party outside of an Annual Drilling Plan, (a) including, without limitation, (i) costs of bonding, permitting, leasing, surface agreements and rights of way, easements, site preparation, drilling (both tangible and intangible costs), completing, recompleting, stimulating, equipping, constructing or expanding a System to connect to a Well, connecting a Well to a System, compression, gas treatment facilities and (ii) costs of legal, regulatory and environmental compliance and all fees associated therewith, including attorneys’ fees, (b) but expressly excluding any credits or adjustments in respect of taxes or other positive amounts.

 

Capital Costs” shall mean any expenditure which is required to be capitalized under generally accepted accounting principles as are in effect from time to time and applied on a consistent basis both as to classification of items and amounts; with respect to Gas accounting, all of the foregoing shall be applied on a “successful efforts” basis (as defined according to generally accepted accounting principles).

 

Capture” shall mean to collect, treat (if necessary), process (if necessary), transport, store (if necessary), market and sell Gas that is available from any Well.

 

CEI Contact” shall have the meaning ascribed to such term in Section 2.7.1.

 

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Master Cooperation and Safety Agreement

 

CEI” shall have the meaning ascribed to such term in the preamble.

 

CEI Subsidiary” shall mean each party to this Agreement that is designated as a “CEI Subsidiary” on the signature page hereof and each other Person that joins this Agreement as a CEI Subsidiary after the Effective Date pursuant to Schedule A other than CNX or any CNX Subsidiary.

 

Claim” shall mean any and all claims, demands, liabilities, damages, taxes, penalties, interest, judgments, losses, costs, charges and expenses (including reasonable out-of-pocket fees, including attorneys’ fees) arising out of or as a consequence of, whether direct or indirect, a given transaction or occurrence.

 

CNX” shall have the meaning ascribed to such term in the preamble.

 

This excerpt taken from the CNX 8-K filed Aug 1, 2005.

DEFINITIONS

 

The following terms shall have the meanings set forth in this article, unless a different meaning is plainly required by the context;

 

“Account” means the book entry account established and maintained for each Participant under Section 3.1.

 

“Administrator” means a committee of two or more persons selected to serve by the Board. If no such committee exists, then the Administrator means the Board.

 

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“Affiliate” means any parent corporation (within the meaning of Code § 424(e)) or subsidiary corporation (within the meaning of Code § 424(f)).

 

“Beneficiary” means an individual, trust or other entity entitled to receive payment on account of a Participant’s death.

 

“Board” means the board of directors of CONSOL Energy Inc.

 

“Code” means the Internal Revenue Code of 1986, as amended.

 

“Company” means CONSOL Energy Inc.

 

“Deferral” means the amount or percentage to be withheld from an Eligible Director’s Fee, pursuant to a Deferral Election.

 

“Deferral Election” means an Eligible Director’s election to defer all or a portion of his or her Fee under the Plan on the form and in the manner prescribed by the Administrator and as may be required under the Plan. No Deferral Election shall be effective with respect to any Fee payable while the Participant is not an Eligible Director.

 

“Distribution Election” means a Participant’s election to receive payment of his or her Account. Such election shall specify the form of distribution allowable under Section 4.3.

 

“Earnings” means the amount credited to a Participant’s Account each quarter under Section 3.2.

 

“Effective Date” means October 25, 1999.

 

“Eligible Director” means a member of the Board, and who is selected by the Administrator, in its sole discretion, as eligible to participant in the Plan and notified of such in writing.

 

“Fee” means any fee, such as the annual retainer, meeting fees or other amounts earned by the Eligible Director during the Plan Year for services performed as a member of the Board, and that is paid in cash or property to the Eligible Director, or would be paid but for a Deferral Election.

 

“Initial Entry Date” means the Effective Date or, if later, the first day of the month following the date an individual is first designated as an Eligible Director.

 

“Participant” means an individual for whom either (i) a Deferral Election is in effect or (ii) an Account exists (including a Beneficiary when appropriate in the context).

 

“Plan” means the CONSOL Energy Inc. Directors Deferred Compensation Plan as set forth herein, as it may be amended from time to time.

 

“Plan Year” means each calendar year.

 

8


“Termination” means the Participant is no longer a member of the Board and is not an employee of the Company or any Affiliate.

 

“Trust” means the legal entity created by the Trust Agreement.

 

“Trust Agreement” means the trust instrument entered into between the Company and a trustee, as it may be amended from time to time.

 

“Unforeseeable Emergency” means an unanticipated emergency, such as a sudden and unexpected illness or accident of the Participant or a dependent of the Participant or loss of the Participant’s property due to casualty, that is caused by an event beyond the control of the Participant, and that results in severe financial hardship that a withdrawal or cessation of a Deferral Election would mitigate.

 

IN WITNESS WHEREOF, CONSOL Energy, Inc., has caused this Plan to be executed by a duly authorized officer effective as of October 25, 1999.

 

CONSOL ENERGY INC.

By:   /S/    J. BRETT HARVEY        

 

9

This excerpt taken from the CNX 8-K filed May 9, 2005.

16.    Definitions.

 

As used in the Plan, the following terms shall have the meanings set forth below:

 

“Affiliate” shall mean (i) any entity that, directly or indirectly, is controlled by the Company, (ii) any entity in which the Company has a significant equity interest and (iii) an Affiliate of the Company as defined in Rule 12b-2 promulgated under Section 12 of the Exchange Act, in either case as determined by the Committee.

 

“Annual Service Period” means an annual period determined by the Board, which annual period shall be January 1 through December 31 or such other annual period as may be designated from time to time by the Board.

 

“Award” shall mean any Option, Stock Appreciation Right, Restricted Stock Award, Restricted Stock Unit, Performance Award or other Stock-Based Award.

 

“Award Agreement” shall mean any written agreement, contract, or other instrument or document evidencing any Award, which shall not become effective until executed or acknowledged by a Participant.

 

“Board” shall mean the Board of Directors of the Company.

 

“Cause” shall mean, unless otherwise defined in the applicable Award Agreement, a determination by the Committee that a Participant has: (1) committed an act of embezzlement, fraud, dishonesty or breach of fiduciary duty to the Company; (2) deliberately and repeatedly violated the rules of the Company or the valid instructions of the Board or an authorized officer of the Company; (3) made any unauthorized disclosure of any of the material secrets or confidential information of the Company; or (4) engaged in any conduct that could reasonably be expected to result in material loss, damage or injury to the Company.

 

“Change in Control” shall mean, unless otherwise defined in the applicable Award Agreement, the earliest to occur of: (1) any one “person” as such term is used in Sections 13(d) and 14(d) of the Exchange Act (other than (A) the Company, (B) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (C) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of Shares), or more than one “person” acting as a “group”, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Shares that, together with the Shares held by such “person” or “group”, possess more than 50% of the total Fair Market Value or total voting power of the Shares; (2) a majority of members of the Board is replaced during any 12 month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; or (3) the sale of all or substantially all of the Company’s assets.

 

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

 

“Committee” shall mean a committee of the Board designated by the Board to administer the Plan. To the extent deemed appropriate by the Board, the Committee shall be composed of not less than two individuals who are “outside directors” within the meaning of Code Section 162(m) and “non-employee directors” within the meaning of Section 16 and “independent directors” within the meaning of Section 303A of the New York Stock Exchange Listed Company Manual.

 

“Company” shall mean CONSOL Energy Inc.

 

“Deferred Stock Unit” means a right, granted to Eligible Directors in accordance with Section 10, to acquire a Share for no consideration or some other amount determined by the Board.

 

“Disability” shall mean, unless otherwise defined in the applicable Award Agreement, a Participant’s inability, because of physical or mental incapacity or injury (that has continued for a period of at least 12

 

9


consecutive calendar months), to perform for the Company or an Affiliate substantially the same services as he or she performed prior to incurring such incapacity or injury.

 

“Effective Date” shall mean May 3, 2005.

 

“Eligible Director” means a director who is not an employee of the Company or any of its Affiliates.

 

“Employee” shall mean an employee or consultant of the Company or of any Affiliate, including any individual who enters into an employment agreement with the Company or an Affiliate which provides for commencement of employment within three months of the date of the agreement.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

“Fair Market Value” shall mean the fair market value of the property or other item being valued, as determined by the Committee in its sole discretion. Fair Market Value with respect to the Shares, as of any date, shall mean (i) if the Shares are listed on a securities exchange or are traded over the NASDAQ National Market System, the closing sales price of the Shares on such exchange or over such system on such date, or in the absence of reported sales on such date, the closing sales price on the immediately preceding date on which sales were reported, (ii) if the Shares are not so listed or traded, the mean between the bid and offered prices of the Shares as quoted by the National Association of Securities Dealers through NASDAQ for such date or (iii) in the event there is no public market for the Shares, the fair market value as determined by the Committee in its sole discretion.

 

“Grant Date” means, with respect to an Award, date on which the Board makes the determination to grant such Award, or such other date as is determined by the Board. Within a reasonable time thereafter, the Company will execute and deliver an Award Agreement to the Participant.

 

“Incentive Stock Option” shall mean a right to purchase Shares from the Company that is granted under Section 5 of the Plan and that is intended to meet the requirements of Section 422 of the Code or any successor provision thereto.

 

“Non-Qualified Stock Option” shall mean a right to purchase Shares from the Company that is granted under Section 5 of the Plan and that is not intended to be an Incentive Stock Option.

 

“Option” shall mean an Incentive Stock Option or a Non-Qualified Stock Option and shall include a Restoration Option.

 

“Other Stock-Based Award” shall mean any right granted under Section 9 of the Plan.

 

“Participant” shall mean any Employee or Eligible Director who receives an Award under the Plan.

 

“Performance Award” shall mean any right granted under Section 8 of the Plan.

 

“Person” shall mean any individual, corporation, partnership, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof or other entity.

 

“Plan” shall mean this CONSOL Energy Inc. Equity Incentive Plan as amended and restated herein.

 

“Restoration Option” shall mean an Option granted pursuant to Section 5(e) of the Plan.

 

“Restricted Stock” shall mean any Share granted under Section 7 of the Plan.

 

10


“Restricted Stock Unit” shall mean any unit granted under Section 7 of the Plan.

 

“Retirement” shall mean with respect to a Participant other than an Eligible Director retirement of a Participant from the employ or service of the Company or any of its Affiliates in accordance with the terms of the applicable Company retirement plan or, if a Participant is not covered by any such plan, retirement on or after such Participant’s 65th birthday, unless otherwise defined in the applicable Award Agreement.

 

“SEC” shall mean the Securities and Exchange Commission or any successor thereto and shall include the staff thereof.

 

“Section 16” shall mean Section 16 of the Exchange Act and the rules promulgated thereunder and any successor provision thereto as in effect from time to time.

 

“Section 162(m)” shall mean Section 162(m) of the Internal Revenue Code of 1986 and the rules promulgated thereunder or any successor provision thereto as in effect from time to time.

 

“Shares” shall mean shares of the common stock, $.01 par value, of the Company, or such other securities of the Company as may be designated by the Committee from time to time.

 

“Stock Appreciation Right” shall mean any right granted under Section 6 of the Plan.

 

“Substitute Awards” shall mean Awards granted in assumption of, or in substitution for, outstanding awards previously granted by a company acquired by the Company or with which the Company combines.

 

IN WITNESS WHEREOF, CONSOL Energy Inc. has executed this Plan on May 3, 2005. CONSOL Energy Inc.

 

By:   /s/    J. BRETT HARVEY        

Its:

  Chief Executive Officer

 

11

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